Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 10 of 10
Full-Text Articles in Jurisprudence
Can Speech Act Theory Save Notice Pleading?, Susan E. Provenzano
Can Speech Act Theory Save Notice Pleading?, Susan E. Provenzano
Indiana Law Journal
Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew …
Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky
Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky
Seattle University Law Review
This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.
We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …
Assertion And Hearsay, Richard Lloret
Assertion And Hearsay, Richard Lloret
Dickinson Law Review (2017-Present)
This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …
Deciding, ‘What Happened?’ When We Don’T Really Know: Finding Theoretical Grounding For Legitimate Judicial Fact-Finding, Nayha Acharya
Deciding, ‘What Happened?’ When We Don’T Really Know: Finding Theoretical Grounding For Legitimate Judicial Fact-Finding, Nayha Acharya
Articles, Book Chapters, & Popular Press
The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be …
Unfit To Parent: American And Jewish Legal Perspectives, Michoel Zylberman, Karen K. Greenberg, Daniel Pollack
Unfit To Parent: American And Jewish Legal Perspectives, Michoel Zylberman, Karen K. Greenberg, Daniel Pollack
Touro Law Review
No abstract provided.
Georgia's New Evidence Code - An Overview, Paul S. Milich
Georgia's New Evidence Code - An Overview, Paul S. Milich
Georgia State University Law Review
On May 3, 2011, Governor Nathan Deal signed into law House Bill 24 (HB 24) bringing a new set of evidence rules to the State of Georgia.
The new rules went into effect on January 1, 2013. The author of this article was the Reporter for the State Bar Evidence Study Committee when new rules were first proposed back in the mid-1980s, and again throughout the recent, successful effort to reform the rules.
Part I of this article will give a brief history of the twenty-six-year effort to bring new evidence rules to Georgia. Part II will provide a structural …
What Will We Lose If The Trial Vanishes?, Robert P. Burns
What Will We Lose If The Trial Vanishes?, Robert P. Burns
Faculty Working Papers
The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.
The Death Of The American Trial, Robert P. Burns
The Death Of The American Trial, Robert P. Burns
Faculty Working Papers
This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.
Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank
Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank
Faculty Scholarship
No abstract provided.
The Noseworthy Doctrine: A Threepart Rule For Its Application, Steven D. Jannace
The Noseworthy Doctrine: A Threepart Rule For Its Application, Steven D. Jannace
Touro Law Review
No abstract provided.